Citation Nr: 0312029
Decision Date: 06/09/03 Archive Date: 06/16/03
DOCKET NO. 97-32 534 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Manchester,
New Hampshire
THE ISSUE
Entitlement to service connection for bruxism.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Blackmon, Counsel
INTRODUCTION
The appellant served on active duty from March 1978 to June
1979.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 1996 rating decision by the
Boston, Massachusetts Regional Office (RO) of the Department
of Veterans Affairs (VA). The appellant now resides within
the jurisdiction of the Manchester, New Hampshire Regional
Office.
REMAND
In August 2002, the Board informed the appellant of the
provisions of the Veterans Claims Assistance Act of 2000,
38 U.S.C. §§ 5103, 5103A, 5107 (West 2002). However, the
United States Court of Appeals for the Federal Circuit
recently invalidated the regulations that empowered the Board
to both issue written notification of the VCAA to veterans
and to consider additional evidence without prior RO review
in the absence of a waiver of such review by the claimant or
his or her representative. Disabled American Veterans v.
Secretary of Veterans Affairs, Nos. 02-7304, -7305, -7316
(Fed. Cir. May 1, 2003).
With respect to the issue on appeal, it is the opinion of the
Board that a contemporaneous and thorough VA examination and
medical opinion would assist the Board in clarifying the
nature of the appellant's disability and would be instructive
with regard to the appropriate disposition of the issue
submitted for appellate consideration. Littke v. Derwinski,
1 Vet. App. 90 (1990).
Accordingly, this matter is REMANDED to the RO for further
development as indicated below:
1. The RO must review the claims file and
ensure that all notification and development
action required by 38 U.S.C.A. §§ 5102, 5103,
and 5103A (West Supp. 2002) are fully
complied with and satisfied. See also
38 C.F.R. § 3.159 (2002)and Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
2. The claims file should be referred to the
same VA examiner who performed the March 2001
VA dental and oral examination (if
unavailable to another appropriate VA
examiner). Request the examiner in an
addendum to again review the claims folder
and to render an opinion as to whether the
appellant currently has bruxism? If yes, the
examiner should render an opinion as to
whether it is as likely as not that the
bruxism is related to service? A complete
rational for any opinion expressed should be
included in the addendum to the medical
report. If the examiner determines that
further examination is necessary, the
appellant should be scheduled for the
examination.
3. The RO should then readjudicate the issue
on appeal. In the event that any action
taken remains adverse to the appellant, she
should be provided with a supplemental
statement of the case, and an opportunity to
respond. Thereafter, subject to current
appellate procedures, the case should again
be returned to the Board for further
appellate consideration.
The Board intimates no opinion as to the ultimate outcome of
this appeal. The appellant need take no action unless
otherwise notified, but she may submit additional evidence
and argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
_________________________________________________
ROBERT P. REGAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).